CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.591 OF 2019
(Arising out of Special Leave Petition (Criminal) No.856 of 2018)
PAVAN VASUDEO SHARMA …Appellant
VERSUS
STATE OF MAHARASHTRA THROUGH SECRETARY …Respondent
J U D G M E N T
Uday Umesh Lalit, J.
1. Leave granted.
2. This appeal at the instance of original Accused No.1, challenges the
correctness of the judgment and order dated 24.03.2015 passed by the High
Court of Judicature at Bombay dismissing his Criminal Appeal No.700 of
2013.
3. According to the prosecution, Police Naik Nagare (later examined as
PW11 in the trial) was robbed of his pistol (service weapon) and walkie talkie
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
2
set by three persons on 20.12.2005 at about 9.00 pm. Accordingly an FIR was
registered on 20.12.2005 in respect of said incident, which FIR in the present
proceedings was placed on record vide Exhibit 106. The FIR did not name
any person but gave description of all the three persons. The said case was
separately tried.
4. On 04.01.2006 PW1-PSI Dabir received a phone call that one injured
person was lying near a motorcycle on Mumbai-Pune highway. Said PW1
went to the spot and took the injured to the hospital where he was declared
dead. On the basis of motorcycle driving licence found in the trousers of the
deceased, he was identified as one Bhima Waghmare. The family members
were, thereafter, informed and FIR Exhibit 13 was lodged pursuant to which
an offence was registered vide C.R.No.5 of 2006. The investigation
commenced and body was sent for post-mortem. PW3 Dr. Joshi conducted
the post-mortem and found the following external injuries:-
“(1) Fire arm injury. Right side inframammary
region, 13 cm below and medial to left
mammary gland.
(2) Burn injury due to firm arm on left thigh. Two in
number. 9 cm. below iliac left side admeasuring
2 ½ cm. x 1 cm. Superficial to deep. Dark black
in colour with red center.
(3) Abrasion over 9 cm. below iliac region left side
8 cm below and 5 cm posterior to anterior
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
3
superior iliac spine, admeasuring 2 ½ cm x
superficial to deep.
(4) Abrasions on body as under:
(A) Arm medial third anteriorly;
(B) Elbow posteriorly and
(C) Wrist anteriorly:
(D) (a) Thigh middle third.
(b)Knee joint.”
Said PW3 Dr. Joshi found the following corresponding internal
injuries:-
“Penetrating wound to abdominal wall, peritoneum
superior side of left lobe of liver, shattering part of it.
Coming out at inferior side, entering into pancreas,
shattering out the pancreas, penetrating at two sites at
mesentery of small intestine. Two cm. in diameter
each, going posterior medial to left kidney with large
retro peritoneal and peritoneal region. Fitting lumber
spine no. 4 and 5 body with indentation and fracture at
left side of body of L 4 and L 5. Changing the
direction hitting illiacrest at left Sacra iliac joint.
Changing direction, getting embedded into para spinal
muscles and fat left side, directed laterally and
superiorly. Bullet recovered from above mentioned
side. Yellowish metal concavity at its base.”
5. It is the case of the prosecution that when Bhima Waghmare was shot,
the firm arm used in the transaction was the same service weapon which was
robbed from PW11 Police Naik Nagare. Soon after the murder, two cell
phones belonging to Bhima Waghmare were also allegedly robbed, one of
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
4
them being a cell phone of Nokia Company with cell number 9850520922.
This mobile was later used in the case of kidnapping of a boy named Akash
Lokhande, who was kidnapped on 13.01.2006 and the calls for ransom were
stated to have been made from the very same cell phone to PW 12 Sanjay
Lokhande, father of the boy. An FIR was registered in relation to said
kidnapping on 13.01.2006 and said case was also tried separately.
6. During the course of investigation of the kidnapping case, information
was received by the police that said Akash Lokhande was confined in a
building in Vimannagar, Pune. Accordingly, a raid was arranged and when
the police entered said building, they found Pavan Vasudeo Sharma
(Accused No.1), Pankaj Ramgopal Jagaria (Accused No.2), Vasudeo Sharma
and Rajendra Gaud to be present there. Those persons were apprehended.
During his personal search, a 9 mm pistol (service revolver) and two
live cartridges were recovered from Accused No.1. Two cell phones were
also found from him. In the search of Accused No.2, a chopper was found.
All those four persons came be to apprehended in kidnapping case. The
recovered pistol was sent for forensic analysis. The forensic analyst found
that the bullet which was recovered from the stomach of deceased Bhima
Waghmare, was fired from the same pistol. The live cartridge that was
recovered from Accused No.1 was test fired by the forensic analyst from the
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
5
same pistol and the features of the firing pin impression on the cartridge
tallied with those found from the bullet recovered from the body of deceased
Bhima Waghmare.
All the four apprehended persons were put up for identification by
PW11 Police Naik Nagare and according to the witness he could identify
Accused Nos.1 and 2. However, no documentation as regards the Test
Identification Parade was produced on record in the present trial.
7. After completion of investigation, Accused Nos.1 and 2 were tried for
having committed the offences including the murder of said Bhima
Waghmare, punishable under Sections 302, 392 read with Section 34 of the
Indian Penal Code, Section 37(1) read with Section 135 of the Bombay
Police Act and Section 3 (25) of the Indian Arms Act.
8. PW2 Seema widow of the deceased Bhima Waghmare stated in her
deposition that her husband was having two mobile numbers and one of
them was 9850520922. She accepted that in her first reporting she had
expressed suspicion against some other persons including professional rivals
of her husband. PW5 Sachin Mahadev Shinde, Nodal Officer of Idea
Cellular Company stated that mobile phone number 9850520922 was
subscribed by one Sanjay S. Roy having his address as Sai Prasad Foods
Ltd., Telco Road, First Floor, near Raka Gas Company, Chinchwad Station,
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
6
Pune-411019. He also produced the record of calls details vide Exhibit 55
showing relevant pages of call details with regard to period January 2006
and February 2006 about user of the mobile. PW6 Senior Police Inspector
Pandurang Udhavrao Kohimkar was the Investigating Officer in the matter.
He did not depose about any Test Identification Parade nor did he produce
any record regarding identification of Accused Nos. 1 and 2 by PW11 Police
Naik Nagare. PW12 Sanjay Lokhande, father of Akash Lokhande testified
that demands for ransom were made from him and the communication was
received from mobile number 9850520922. During his testimony he also
mentioned that the person who was making the demand had casually
mentioned that they had killed a person at Karjat.
9. It was the case of the prosecution that the pistol seized from the
Apellant-Accused No.1 was a service weapon which was entrusted to PW11
Police Naik Nagare, which weapon was snatched from him on 20.12.2005.
It was the same weapon which was found to be used in the commission of
offence of murder of Bhima Waghmare. There was no direct evidence in the
form of any eyewitness account which was available on record and the
prosecution mainly relied upon certain circumstances in support of its case.
The circumstantial evidence in the matter was based mainly on two
features:-
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
7
a) Recovery of mobile phone which was allegedly used for making
demands of ransom; and
b) Seizure of 9 mm pistol as aforesaid.
10. Apart from these two circumstances, reliance was also placed on the
alleged extra judicial confession made by those demanding ransom in their
telephonic conversation with PW12-Sanjay Lokhande. Considering these
circumstances to be clinching and pointing towards nothing but the guilt of
the accused, the Additional Sessions Judge, Pune, vide his judgment dated
11.01.2011 convicted said Accused Nos. 1 and 2 for the offences punishable
under Sections 302, 392 read with Section 34 IPC, Section 37(1) read with
Section 135 of the Bombay Police Act and Section 3 (25) of the Indian Arms
Act and sentenced them to suffer life imprisonment under the first count,
rigorous imprisonment for two years under the second count, rigorous
imprisonment for 15 days under the third count and rigorous imprisonment
for six months under the fourth count.
11. Both the convicted accused challenged their conviction and sentence
by preferring two appeals being Criminal Appeal No.700 of 2013 and
Criminal Appeal No.1056 of 2013. As regards Accused No.1, the High
Court found that the prosecution had established its case and there was
sufficient evidence to prove that he was involved in the crime relating to the
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
8
murder of Bhima Waghmare. The High Court, however, found that there
was no material to connect Accused No.2 with the crime and, therefore,
acquitted him of the charges levelled against him under Sections 302, 392 of
IPC and under Section 3(25) of the Indian Arms Act but maintained his
conviction and sentence insofar as offence under Section 37(1) read with
Section 135 of the Bombay Police Act was concerned.
12. It is a matter of record that the acquittal of Accused No.2 has not been
challenged by the State and has attained finality.
13. The facts narrated above bring out the following features:-
a) Going by FIR at Exhibit 106, three persons were responsible
for robbing PW11 Police Naik Nagare of his service
weapon. Though the description of all three persons was
given in FIR Exhibit 106, no Test Identification Parade was
undertaken when four suspects were apprehended during
investigation of the kidnapping case. No material in that
behalf is produced on record. Nothing is clear on record as
to who was the third person.
b) According to PW11 Police Naik Nagare he had lost
consciousness for a while after he was assaulted by those
three persons; that after he regained consciousness, he dialed
100 from his mobile and intimated about the loss of his
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
9
service weapon and walkie talkie. It is somewhat
incongruent that the persons who robbed him of his service
weapon and walkie talkie would leave his mobile intact.
c) In terms of version of PW2 Seema, mobile number
9850520922 was subscribed by her husband Bhima
Waghmare. On the other hand, the evidence led by the
prosecution itself in the form of testimony of PW5 Sachin
Mahadev Shinde shows that mobile number 9850520922
was subscribed by one Sanjay S Roy. Again, the
prosecution has failed to establish the link, if any, between
said Sanjay S Roy and Bhima Waghmare and whether said
Sanjay S Roy had ever handed over his mobile to Bhima
Waghmare.
d) PW2 Seema in her original version had expressed suspicion
about certain professional rivals of her husband.
e) The assertion that one of the persons making ransom calls
had disclosed that they had killed a person at Karjat did not
come in the examination-in-chief of PW12 Sanjay Lokhande
but appeared in his cross-examination. It was thus not the
specific case of the prosecution that any extra judicial
confession was made to PW12 Sanjay Lokhande.
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
10
f) The matter has one more dimension. While ordering
acquittal of Accused No.2, insofar as principal charges are
concerned, his conviction for offence under Section 37(1)
read with Section 135 of the Bombay Police Act was
maintained by the High Court. We, thus, have to proceed on
the footing that Accused No. 2 was also guilty of snatching
the service weapon of PW11 Police Naik Nagare but not of
murder.
g) There was a gap of about 15 days between the snatching of
the service weapon and murder.
14. With the acquittal of Accused No.2 of the principal charge under
Section 302, we are now called upon to see whether the material on record
sufficiently establishes that it was Accused No.1 alone who was guilty of the
offence punishable under Section 302 IPC.
15. Two circumstances which are principally relied upon by the
prosecution are already mentioned hereinabove. The first circumstance
regarding mobile phone is not proved at all. The mobile number was not
subscribed by deceased Bhima Waghmare but was subscribed by Sanjay S.
Roy. No link between these two persons has been established nor any bill in
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
11
the name of said Bhima Waghmare was produced on record. Since the
evidence that the mobile number was subscribed by said Sanjay S. Roy was
led by the prosecution itself, it cannot be assumed that said mobile number
was, in fact, subscribed by Bhima Waghmare. The connection which would
link the accused with the murder of Bhima Waghmare, on this front is
completely missing. As regards the second circumstance, it is true that the
bullet recovered from the body of the deceased matched with the service
weapon which was allocated to PW11 Police Naik Nagare but the theory that
the weapon was snatched by the accused is not sufficiently established. No
Test Identification Parade was held and if held, no material in that behalf has
been produced on record. The second circumstance, therefore, is not
sufficiently established as against the accused.
16. The law on the point of appreciation of cases based on circumstantial
evidence is very clear. It was laid down by this Court in Sharad Birdhichand
Sarda vs. State of Maharashtra1
as under:-
“153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
1 (1984) 4 SCC 116
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
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It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may
be” established. There is not only a grammatical but a
legal distinction between “may be proved” and “must be
or should be proved” as was held by this Court in
Shivaji Sahabrao Bobade v. State of Maharashtra2
where the observations were made: [SCC para 19, p.
807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental
distance between ‘may be’ and ‘must be’ is
long and divides vague conjectures from sure
conclusions.”
(2) the facts so established should be
consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not
be explainable on any other hypothesis except
that the accused is guilty,
(3) the circumstances should be of a
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that
in all human probability the act must have
been done by the accused.”
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.”
2 (1973) 2 SCC 793; 1973 SCC (Cri) 1033; 1973 Cri LJ 1783
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
13
17. Applying the principles as culled out in the aforesaid decision, which
have stood the test of time, in our view, the matter is not free from doubt. The
circumstances relied upon must rule out every single hypothesis except the
guilt of the person accused of an offence. There are too many missing links in
the present matter and in our considered view, the material on record does not
exclude every single hypothesis except the guilt of the man.
18. We, therefore, give benefit of doubt to the Appellant. This appeal is,
therefore, allowed and the Appellant is acquitted of the charges levelled
against him. He be set at liberty forthwith unless his presence is required in
connection with any other offence.
..………….……………J.
(Uday Umesh Lalit)
..………….……………J.
(Indu Malhotra)
New Delhi,
March 25, 2019.
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.591 OF 2019
(Arising out of Special Leave Petition (Criminal) No.856 of 2018)
PAVAN VASUDEO SHARMA …Appellant
VERSUS
STATE OF MAHARASHTRA THROUGH SECRETARY …Respondent
J U D G M E N T
Uday Umesh Lalit, J.
1. Leave granted.
2. This appeal at the instance of original Accused No.1, challenges the
correctness of the judgment and order dated 24.03.2015 passed by the High
Court of Judicature at Bombay dismissing his Criminal Appeal No.700 of
2013.
3. According to the prosecution, Police Naik Nagare (later examined as
PW11 in the trial) was robbed of his pistol (service weapon) and walkie talkie
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
2
set by three persons on 20.12.2005 at about 9.00 pm. Accordingly an FIR was
registered on 20.12.2005 in respect of said incident, which FIR in the present
proceedings was placed on record vide Exhibit 106. The FIR did not name
any person but gave description of all the three persons. The said case was
separately tried.
4. On 04.01.2006 PW1-PSI Dabir received a phone call that one injured
person was lying near a motorcycle on Mumbai-Pune highway. Said PW1
went to the spot and took the injured to the hospital where he was declared
dead. On the basis of motorcycle driving licence found in the trousers of the
deceased, he was identified as one Bhima Waghmare. The family members
were, thereafter, informed and FIR Exhibit 13 was lodged pursuant to which
an offence was registered vide C.R.No.5 of 2006. The investigation
commenced and body was sent for post-mortem. PW3 Dr. Joshi conducted
the post-mortem and found the following external injuries:-
“(1) Fire arm injury. Right side inframammary
region, 13 cm below and medial to left
mammary gland.
(2) Burn injury due to firm arm on left thigh. Two in
number. 9 cm. below iliac left side admeasuring
2 ½ cm. x 1 cm. Superficial to deep. Dark black
in colour with red center.
(3) Abrasion over 9 cm. below iliac region left side
8 cm below and 5 cm posterior to anterior
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
3
superior iliac spine, admeasuring 2 ½ cm x
superficial to deep.
(4) Abrasions on body as under:
(A) Arm medial third anteriorly;
(B) Elbow posteriorly and
(C) Wrist anteriorly:
(D) (a) Thigh middle third.
(b)Knee joint.”
Said PW3 Dr. Joshi found the following corresponding internal
injuries:-
“Penetrating wound to abdominal wall, peritoneum
superior side of left lobe of liver, shattering part of it.
Coming out at inferior side, entering into pancreas,
shattering out the pancreas, penetrating at two sites at
mesentery of small intestine. Two cm. in diameter
each, going posterior medial to left kidney with large
retro peritoneal and peritoneal region. Fitting lumber
spine no. 4 and 5 body with indentation and fracture at
left side of body of L 4 and L 5. Changing the
direction hitting illiacrest at left Sacra iliac joint.
Changing direction, getting embedded into para spinal
muscles and fat left side, directed laterally and
superiorly. Bullet recovered from above mentioned
side. Yellowish metal concavity at its base.”
5. It is the case of the prosecution that when Bhima Waghmare was shot,
the firm arm used in the transaction was the same service weapon which was
robbed from PW11 Police Naik Nagare. Soon after the murder, two cell
phones belonging to Bhima Waghmare were also allegedly robbed, one of
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
4
them being a cell phone of Nokia Company with cell number 9850520922.
This mobile was later used in the case of kidnapping of a boy named Akash
Lokhande, who was kidnapped on 13.01.2006 and the calls for ransom were
stated to have been made from the very same cell phone to PW 12 Sanjay
Lokhande, father of the boy. An FIR was registered in relation to said
kidnapping on 13.01.2006 and said case was also tried separately.
6. During the course of investigation of the kidnapping case, information
was received by the police that said Akash Lokhande was confined in a
building in Vimannagar, Pune. Accordingly, a raid was arranged and when
the police entered said building, they found Pavan Vasudeo Sharma
(Accused No.1), Pankaj Ramgopal Jagaria (Accused No.2), Vasudeo Sharma
and Rajendra Gaud to be present there. Those persons were apprehended.
During his personal search, a 9 mm pistol (service revolver) and two
live cartridges were recovered from Accused No.1. Two cell phones were
also found from him. In the search of Accused No.2, a chopper was found.
All those four persons came be to apprehended in kidnapping case. The
recovered pistol was sent for forensic analysis. The forensic analyst found
that the bullet which was recovered from the stomach of deceased Bhima
Waghmare, was fired from the same pistol. The live cartridge that was
recovered from Accused No.1 was test fired by the forensic analyst from the
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
5
same pistol and the features of the firing pin impression on the cartridge
tallied with those found from the bullet recovered from the body of deceased
Bhima Waghmare.
All the four apprehended persons were put up for identification by
PW11 Police Naik Nagare and according to the witness he could identify
Accused Nos.1 and 2. However, no documentation as regards the Test
Identification Parade was produced on record in the present trial.
7. After completion of investigation, Accused Nos.1 and 2 were tried for
having committed the offences including the murder of said Bhima
Waghmare, punishable under Sections 302, 392 read with Section 34 of the
Indian Penal Code, Section 37(1) read with Section 135 of the Bombay
Police Act and Section 3 (25) of the Indian Arms Act.
8. PW2 Seema widow of the deceased Bhima Waghmare stated in her
deposition that her husband was having two mobile numbers and one of
them was 9850520922. She accepted that in her first reporting she had
expressed suspicion against some other persons including professional rivals
of her husband. PW5 Sachin Mahadev Shinde, Nodal Officer of Idea
Cellular Company stated that mobile phone number 9850520922 was
subscribed by one Sanjay S. Roy having his address as Sai Prasad Foods
Ltd., Telco Road, First Floor, near Raka Gas Company, Chinchwad Station,
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
6
Pune-411019. He also produced the record of calls details vide Exhibit 55
showing relevant pages of call details with regard to period January 2006
and February 2006 about user of the mobile. PW6 Senior Police Inspector
Pandurang Udhavrao Kohimkar was the Investigating Officer in the matter.
He did not depose about any Test Identification Parade nor did he produce
any record regarding identification of Accused Nos. 1 and 2 by PW11 Police
Naik Nagare. PW12 Sanjay Lokhande, father of Akash Lokhande testified
that demands for ransom were made from him and the communication was
received from mobile number 9850520922. During his testimony he also
mentioned that the person who was making the demand had casually
mentioned that they had killed a person at Karjat.
9. It was the case of the prosecution that the pistol seized from the
Apellant-Accused No.1 was a service weapon which was entrusted to PW11
Police Naik Nagare, which weapon was snatched from him on 20.12.2005.
It was the same weapon which was found to be used in the commission of
offence of murder of Bhima Waghmare. There was no direct evidence in the
form of any eyewitness account which was available on record and the
prosecution mainly relied upon certain circumstances in support of its case.
The circumstantial evidence in the matter was based mainly on two
features:-
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
7
a) Recovery of mobile phone which was allegedly used for making
demands of ransom; and
b) Seizure of 9 mm pistol as aforesaid.
10. Apart from these two circumstances, reliance was also placed on the
alleged extra judicial confession made by those demanding ransom in their
telephonic conversation with PW12-Sanjay Lokhande. Considering these
circumstances to be clinching and pointing towards nothing but the guilt of
the accused, the Additional Sessions Judge, Pune, vide his judgment dated
11.01.2011 convicted said Accused Nos. 1 and 2 for the offences punishable
under Sections 302, 392 read with Section 34 IPC, Section 37(1) read with
Section 135 of the Bombay Police Act and Section 3 (25) of the Indian Arms
Act and sentenced them to suffer life imprisonment under the first count,
rigorous imprisonment for two years under the second count, rigorous
imprisonment for 15 days under the third count and rigorous imprisonment
for six months under the fourth count.
11. Both the convicted accused challenged their conviction and sentence
by preferring two appeals being Criminal Appeal No.700 of 2013 and
Criminal Appeal No.1056 of 2013. As regards Accused No.1, the High
Court found that the prosecution had established its case and there was
sufficient evidence to prove that he was involved in the crime relating to the
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
8
murder of Bhima Waghmare. The High Court, however, found that there
was no material to connect Accused No.2 with the crime and, therefore,
acquitted him of the charges levelled against him under Sections 302, 392 of
IPC and under Section 3(25) of the Indian Arms Act but maintained his
conviction and sentence insofar as offence under Section 37(1) read with
Section 135 of the Bombay Police Act was concerned.
12. It is a matter of record that the acquittal of Accused No.2 has not been
challenged by the State and has attained finality.
13. The facts narrated above bring out the following features:-
a) Going by FIR at Exhibit 106, three persons were responsible
for robbing PW11 Police Naik Nagare of his service
weapon. Though the description of all three persons was
given in FIR Exhibit 106, no Test Identification Parade was
undertaken when four suspects were apprehended during
investigation of the kidnapping case. No material in that
behalf is produced on record. Nothing is clear on record as
to who was the third person.
b) According to PW11 Police Naik Nagare he had lost
consciousness for a while after he was assaulted by those
three persons; that after he regained consciousness, he dialed
100 from his mobile and intimated about the loss of his
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
9
service weapon and walkie talkie. It is somewhat
incongruent that the persons who robbed him of his service
weapon and walkie talkie would leave his mobile intact.
c) In terms of version of PW2 Seema, mobile number
9850520922 was subscribed by her husband Bhima
Waghmare. On the other hand, the evidence led by the
prosecution itself in the form of testimony of PW5 Sachin
Mahadev Shinde shows that mobile number 9850520922
was subscribed by one Sanjay S Roy. Again, the
prosecution has failed to establish the link, if any, between
said Sanjay S Roy and Bhima Waghmare and whether said
Sanjay S Roy had ever handed over his mobile to Bhima
Waghmare.
d) PW2 Seema in her original version had expressed suspicion
about certain professional rivals of her husband.
e) The assertion that one of the persons making ransom calls
had disclosed that they had killed a person at Karjat did not
come in the examination-in-chief of PW12 Sanjay Lokhande
but appeared in his cross-examination. It was thus not the
specific case of the prosecution that any extra judicial
confession was made to PW12 Sanjay Lokhande.
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
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f) The matter has one more dimension. While ordering
acquittal of Accused No.2, insofar as principal charges are
concerned, his conviction for offence under Section 37(1)
read with Section 135 of the Bombay Police Act was
maintained by the High Court. We, thus, have to proceed on
the footing that Accused No. 2 was also guilty of snatching
the service weapon of PW11 Police Naik Nagare but not of
murder.
g) There was a gap of about 15 days between the snatching of
the service weapon and murder.
14. With the acquittal of Accused No.2 of the principal charge under
Section 302, we are now called upon to see whether the material on record
sufficiently establishes that it was Accused No.1 alone who was guilty of the
offence punishable under Section 302 IPC.
15. Two circumstances which are principally relied upon by the
prosecution are already mentioned hereinabove. The first circumstance
regarding mobile phone is not proved at all. The mobile number was not
subscribed by deceased Bhima Waghmare but was subscribed by Sanjay S.
Roy. No link between these two persons has been established nor any bill in
CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
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the name of said Bhima Waghmare was produced on record. Since the
evidence that the mobile number was subscribed by said Sanjay S. Roy was
led by the prosecution itself, it cannot be assumed that said mobile number
was, in fact, subscribed by Bhima Waghmare. The connection which would
link the accused with the murder of Bhima Waghmare, on this front is
completely missing. As regards the second circumstance, it is true that the
bullet recovered from the body of the deceased matched with the service
weapon which was allocated to PW11 Police Naik Nagare but the theory that
the weapon was snatched by the accused is not sufficiently established. No
Test Identification Parade was held and if held, no material in that behalf has
been produced on record. The second circumstance, therefore, is not
sufficiently established as against the accused.
16. The law on the point of appreciation of cases based on circumstantial
evidence is very clear. It was laid down by this Court in Sharad Birdhichand
Sarda vs. State of Maharashtra1
as under:-
“153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
1 (1984) 4 SCC 116
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It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may
be” established. There is not only a grammatical but a
legal distinction between “may be proved” and “must be
or should be proved” as was held by this Court in
Shivaji Sahabrao Bobade v. State of Maharashtra2
where the observations were made: [SCC para 19, p.
807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental
distance between ‘may be’ and ‘must be’ is
long and divides vague conjectures from sure
conclusions.”
(2) the facts so established should be
consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not
be explainable on any other hypothesis except
that the accused is guilty,
(3) the circumstances should be of a
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that
in all human probability the act must have
been done by the accused.”
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.”
2 (1973) 2 SCC 793; 1973 SCC (Cri) 1033; 1973 Cri LJ 1783
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17. Applying the principles as culled out in the aforesaid decision, which
have stood the test of time, in our view, the matter is not free from doubt. The
circumstances relied upon must rule out every single hypothesis except the
guilt of the person accused of an offence. There are too many missing links in
the present matter and in our considered view, the material on record does not
exclude every single hypothesis except the guilt of the man.
18. We, therefore, give benefit of doubt to the Appellant. This appeal is,
therefore, allowed and the Appellant is acquitted of the charges levelled
against him. He be set at liberty forthwith unless his presence is required in
connection with any other offence.
..………….……………J.
(Uday Umesh Lalit)
..………….……………J.
(Indu Malhotra)
New Delhi,
March 25, 2019.
